Abortion rights in the United States are under threat. At the beginning of this month a draft of a majority opinion written by Supreme Court Justice Samuel Alito leaked to Politico. The draft suggests that the Supreme Court will overturn the decisions it made in Roe vs. Wade nearly fifty years ago and in Planned Parenthood vs. Casey thirty years ago.

In 1973, the Supreme Court decided that criminal abortion statutes, which excepted from criminality only those procedures that would save the life of a pregnant woman, were unconstitutional because they violated the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. Arguing that this clause protected a right to privacy which included the liberty to choose to have an abortion, the Court nonetheless noted some restrictions on abortion. For the stage “prior to approximately the end of the first trimester” of a pregnancy, the abortion decision was left wholly up to a woman and her physician. Subsequent to this stage (during the second trimester) the State could regulate but not entirely prohibit abortion procedures. For the stage subsequent to “viability” of the fetus (in this case at and during the third trimester), the State could “regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother,” (italics mine).

In 1992, the Court heard another case, Planned Parenthood vs. Casey, and issued a decision that changed the trimester framework of Roe but upheld the essential aspects of the earlier decision. The plurality opinion, written by Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter, stated that medical advancements had shown that a fetus could be considered viable at 23 weeks (instead of only during the third trimester, as had been argued in Roe). The State could now regulate or possibly proscribe abortion (except when it was necessary to preserve the life of the pregnant woman) at an earlier point than it could have in Roe.

Now the unprecedented leak of the Supreme Court majority opinion draft has brought abortion rights back to the fore and incited widespread anger and fear. In the leaked draft, which would represent the decision for the case Dobbs vs. Jackson Women’s Health Organization, Justice Alito argues that the Roe vs. Wade decision, and therefore the Planned Parenthood vs. Casey decision, is wrong. He writes, “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely – the Due Process Clause of the Fourteenth Amendment.” Alito concludes that the authority to regulate or permit abortion will be returned to the States, and these States can decide to outlaw abortion entirely without violating any constitutionally protected rights.

The Supreme Court issued a press release the day after the leak affirming that “the [leaked] document…is authentic,” but that it “does not represent a decision by the Court or the final position of any member on the issues in the case.” Does this mean the Court may not, in the end, overturn Roe and Casey? Politico notes in their article about the leak that “justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled.” The decision of the Dobbs vs. Jackson case is expected by June or July of this year and it is possible that something could change. But there is no doubt that whatever the decision, across the country abortion rights are incredibly vulnerable.

Take the Texas law SB4, which outlaws the use of particular “abortion-inducing” drugs after the seventh week of pregnancy. Under another Texas law, a person who “aids or abets” an abortion after fetal cardiac activity can be detected could be subjected to a $10,000 fine. The Dobbs vs. Jackson case itself surrounds a 2018 Missouri law that banned abortions after the first 15 weeks of pregnancy, with exceptions for medical emergencies or severe fetal abnormalities but no exceptions for cases of rape or incest. The problem with these sorts of restrictions is not just that they violate liberties. They also put people’s lives in danger. For example, the Texas law that prohibits the use of certain medications for abortions could negatively impact women who have miscarriages. Since some of the drugs and procedures used in abortion are also used to treat women who are undergoing or who have had miscarriages, this law may prevent them from accessing necessary treatment. Treatment for ectopic pregnancies could also be delayed or outright prevented because of vague clauses in anti-abortion laws in states like Louisiana and Missouri. If abortion laws are indeed returned to the States in the wake of the upcoming Supreme Court decision, abortion in some areas could also be prohibited even in the case of rape or incest, or when a pregnant woman’s life is endangered. That’s why the leak of the draft has been followed by protests across the country: the draft states that there is no protection for abortion in the Constitution, and that the federal government cannot do anything to prevent states from making what laws they will. Anything becomes possible, and this uncertainty is deeply troubling.

It is beyond the scope of this article to claim whether there are protections for abortion under the Due Process Clause of the Constitution. What is not beyond it is the observation, which is scientifically supported, that abortion restrictions have serious consequences for health and well-being. A major study through the University of California, San Francisco called the Turnaway Study (named so because some abortion clinics turn away patients deemed too far along in pregnancy to have the procedure) found that women who wanted an abortion but were denied it fared worse in “numerous aspects of their life, including financial situation, education, and physical and mental health” than women who were able to have the procedure. They were also far likelier to live in poverty and to have fewer resources to cover living expenses. Sarah Miller, an assistant professor of business economics and public policy at the University of Michigan, designed a study to complement the Turnaway Study’s economic dimension, and showed that women who were denied an abortion “suffered an increase in financial distress that lasted several years.” Their debt increased by 78%, and other measures of economic distress such as bankruptcy and eviction increased by 81% (all compared with their pre-birth levels).

Are the legislators who have called for Roe’s overturning through the years prepared to support an expansion of social services to help women who must bring their pregnancies to term? Given conservatives’ distaste of large-scale welfare programs, the answer is likely no. There is a cruelty in this, but its consequences are not inevitable. If abortion laws are left to the States this summer, it becomes our responsibility as a commonwealth to elect representatives who will make the laws we want to see. We have to take the power the Supreme Court appears to be ceding to us to protect our liberties in the wake of the innumerable challenges to them.

SAMPAN, published by the nonprofit Asian American Civic Association, is the only bilingual Chinese-English newspaper in New England, acting as a bridge between Asian American community organizations and individuals in the Greater Boston area. It is published biweekly and distributed free-of-charge throughout metro Boston; it is also delivered to as far away as Hawaii.